Report No. 185
Section 70
Section 70 deals with "admission of execution by party to attested document".
It reads as follows:
"70. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested."
In view of the recommendation for confining Section 68 to 'wills', it is obvious that Section 70 must be confined to wills. But the question is whether the testator, being the sole party, would have had occasion to admit execution of the will, the fact remaining that a will comes into effect only after the death of the testator.
In fact, the 69th Report had this aspect in view and observed (see para 32.47) as follows: "Since a will speaks from the death of the testator, questions as to its execution would arise mostly only after the death of the testator. However, it is not inconceivable that during his lifetime, the testator is a party to a proceeding in which the will is in issu.- for example, in the case of mutual wills".
We find that since the 69th Report was submitted, the Kerala High Court held in R. Saraswathy v. Bhavathy Ammal: AIR 1989 Ker 228 that Section 70 is not applicable to a will because the executant of a will, which will become effective only on the death of the executant, will not be available to admit the execution at the relevant time.
In the case of a will, if the testator had, during his life time, occasion to admit the execution of will (say) in some other registered document or while giving evidence in some other case, that evidence may be relied upon by those who claim under the will as against those who dispute its execution, after the testator's death.
It was also recommended in the 69th Report (see paras 32.43 to 32.47) that the admission of execution of the document (i.e. will) must have been in the course of a legal proceeding, in a pleading or evidence but not an admission before the litigation started. The Commission accepted this view as correct as against the opposite view that the admission could be before or outside the litigation. We agree with the view of the Commission and the reasoning that the principle is "that the parties arrange for attestation with the object of securing evidence in case of litigation" (see para 32.44).
The revised section as recommended in the 69th Report (see para 32.48) is as follows:
"70. The admission of a party to an attested will of its execution by himself shall, if such admission is made in a pleading or otherwise in the course of the proceeding, be sufficient proof of its execution as against him, though it be a will required by law to be attested."
With regard to this format, we have something to say. We are of the view that the section must speak of the 'executant' rather than 'party' to an attested will. Secondly, keeping in view the Kerala Judgment, it will be useful to add the words "such admission", after the words "executant of the will". Again, instead of the words "against him", the words "as against those who dispute the attestation".
We recommend Section 70 to be revised as follows:
"70. Admission of execution by party to attested will.- The admission by the executant of an attested will of its execution shall, if such admission is made during his lifetime in a pleading or otherwise in the course of a suit or proceeding, be sufficient proof of its execution as against those who dispute the execution, though the will is one required by law to be attested."
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